Tan v. Canada (Attorney General)

Tan v. Canada (Attorney General)
Court (s) Database
Federal Court of Appeal Decisions
Date
2018-10-18
Neutral citation
2018 FCA 186
File numbers
A-427-15
Notes
A correction was made on September 18, 2019
Reported Decision
Decision Content
Date: 20181018
Docket: A-427-15
Citation: 2018 FCA 186
CORAM:
PELLETIER J.A.
NEAR J.A.
RENNIE J.A.
WOODS J.A.
ZINN J.A. (ex officio)
BETWEEN:
KIEN BENG TAN
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
Heard at Vancouver, British Columbia, on January 29, 2018.
Judgment delivered at Ottawa, Ontario, on October 18, 2018.
REASONS FOR JUDGMENT BY:
RENNIE J.A.
CONCURRED IN BY:
NEAR J.A.
ZINN J.A. (ex officio)
DISSENTING REASONS BY:
PELLETIER J.A.
CONCURRED IN BY:
WOODS J.A.
Date: 20181018
Docket: A-427-15
Citation: 2018 FCA 186
CORAM:
PELLETIER J.A.
NEAR J.A.
RENNIE J.A.
WOODS J.A.
ZINN J.A. (ex officio)
BETWEEN:
KIEN BENG TAN
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
RENNIE J.A.
I. Overview
[1] Mr. Tan, the appellant, a foreign national who was surrendered to Canadian authorities following a request by the Minister of Justice under the Extradition Act, S.C. 1999, c. 18 (Extradition Act), was convicted of an offence under the Criminal Code, R.S.C. 1985, c. C-46 (Criminal Code) and, while currently serving a sentence in a Canadian penitentiary, filed a complaint of discrimination under the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (CHRA). The Canadian Human Rights Commission declined to process the claim and when the appellant challenged this decision in the Federal Court, it decided that the Commission’s decision was reasonable. He now appeals to this Court.
[2] The Commission refused to deal with the appellant’s complaint of discrimination against the Correctional Service of Canada (CSC) for lack of jurisdiction under paragraph 41(1)(c) of the CHRA because, in its view, he was not “lawfully present in Canada” at the time of the alleged discrimination as required by paragraph 40(5)(a) of the CHRA. The Federal Court, per Justice Heneghan (2015 FC 907), dismissed his application for judicial review of the Commission’s decision.
[3] In reaching their conclusion, the Commission and the Federal Court properly considered themselves bound by the decision of this Court in Forrest v. Canada (Attorney General), 2006 FCA 400, 357 N.R. 168 (Forrest FCA). Both the appellant and the Crown contend that Forrest FCA was wrongly decided and urge this Court to depart from precedent and to set it aside.
[4] For the reasons which follow, I am of the view that Forrest FCA and the Federal Court’s decision in the same case, Forrest v. Canada (Attorney General), 2004 FC 491 (Forrest FC), ought not to be followed.
[5] I would therefore allow the appeal.
II. The context
[6] The appellant is a citizen of Malaysia. In May 2004, while in Canada on a temporary visa, he committed murder and fled to Belgium. In March 2008, he was arrested and extradited to Canada to stand trial for second-degree murder under section 235 of the Criminal Code.
[7] The appellant was subsequently convicted and sentenced to life in prison (R. v. Tan, 2011 BCSC 335; R. v. Tan, 2011 BCSC 595). An inadmissibility report was prepared under subsection 44(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) based on serious criminality as defined in paragraph 36(1)(a) of the IRPA. A deportation order was issued, but its execution was stayed under paragraph 50(b) of the IRPA until completion of the sentence. The appellant remains in custody at Mission Institute, a federal prison in British Columbia.
[8] The appellant is Buddhist. He filed a complaint with the Commission that the CSC had discriminated against him on religious grounds by failing to provide access to chaplains of minority faiths while continuing to provide access to Christian chaplains to other inmates.
[9] The Commission refused to consider the appellant’s complaint because he was not “lawfully present in Canada” as required by paragraph 40(5)(a) of the CHRA. In reaching this decision, the Commission referred the question of his status to “the appropriate minister” under subsection 40(6), which, in this case, it considered to be the Minister of Citizenship and Immigration. The Deputy Minister informed the Commission that the appellant, at the time of the alleged discrimination, “did not have any status as a temporary resident, permanent resident or citizen in Canada”.
[10] The Commission considered the Deputy Minister’s statement conclusive of the question of whether the appellant was lawfully present in Canada. Relying on Forrest FCA, the Commission found that he was not lawfully present in Canada “because he was under a deportation order and [had] no legal status in Canada” (Commission Decision citing para. 24 of the Section 40/41 Report prepared by the Commission investigator).
[11] The Federal Court dismissed the appellant’s judicial review application to set aside the Commission’s decision. In so doing, it made two main rulings.
[12] First, the Court concluded that the Commission did not err in referring the appellant’s status to the Minister of Citizenship and Immigration under subsection 40(6) of the CHRA because that Minister “is tasked with the regulation of the admission of non-citizens into Canada” (at para. 44). As the appellant lacked citizenship or immigration status, and because Forrest FCA was binding, the Commission’s conclusion that he was not lawfully present in Canada was reasonable (at paras. 43, 45–50).
[13] Secondly, the Federal Court rejected the appellant’s argument that limiting paragraph 40(5)(a) and subsection 40(6) to immigration status infringed his rights under section 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (Charter). Relying on this Court’s decision in Toussaint v. Canada (Attorney General), 2011 FCA 213, [2013] 1 F.C.R. 374, the Federal Court ruled that immigration status is not an analogous ground (at paras. 51–58).
III. The Legislation
[14] The two subsections of the CHRA in issue in this appeal are set out below:
No complaints to be considered in certain cases
Recevabilité
40 (5) No complaint in relation to a discriminatory practice may be dealt with by the Commission under this Part unless the act or omission that constitutes the practice
40 (5) Pour l’application de la présente partie, la Commission n’est validement saisie d’une plainte que si l’acte discriminatoire :
(a) occurred in Canada and the victim of the practice was at the time of the act or omission either lawfully present in Canada or, if temporarily absent from Canada, entitled to return to Canada;
a) a eu lieu au Canada alors que la victime y était légalement présente ou qu’elle avait le droit d’y revenir;
(b) occurred in Canada and was a discriminatory practice within the meaning of section 5, 8, 10 or 12 in respect of which no particular individual is identifiable as the victim;
b) a eu lieu au Canada sans qu’il soit possible d’en identifier la victime, mais tombe sous le coup des articles 5, 8, 10 ou 12;
(c) occurred outside Canada and the victim of the practice was at the time of the act or omission a Canadian citizen or an individual lawfully admitted to Canada for permanent residence.
c) a eu lieu à l’étranger alors que la victime était un citoyen canadien ou qu’elle avait été légalement admise au Canada à titre de résident permanent.
Determination of status
Renvoi au ministre compétent
40 (6) Where a question arises under subsection (5) as to the status of an individual in relation to a complaint, the Commission shall refer the question of status to the appropriate Minister and shall not proceed with the complaint unless the question of status is resolved thereby in favour of the complainant.
40 (6) En cas de doute sur la situation d’un individu par rapport à une plainte dans les cas prévus au paragraphe (5), la Commission renvoie la question au ministre compétent et elle ne peut procéder à l’instruction de la plainte que si la question est tranchée en faveur du plaignant.
IV. Issues on appeal
[15] As noted, the appellant contends that the Commission’s interpretation of paragraph 40(5)(a) of the CHRA was unreasonable, and that this Court should overrule its decision in Forrest FCA. In the alternative, if the Commission’s interpretation is reasonable, then the appellant submits that paragraph 40(5)(a) infringes section 15 of the Charter and is not justified under section 1.
[16] The argument advanced by the appellant requires us to revisit Forrest FC and Forrest FCA in order to determine if they are conclusive of his lawful presence in Canada, as found by the Commission and the Federal Court and, if so, whether they are wrongly decided, as alleged.
V. Standard of Review
[17] When this Court sits in appeal from the Federal Court on judicial review, it must ask itself if the Federal Court identified the appropriate standard of review and applied it correctly. As a practical matter, this means that we step into the shoes of the Federal Court so that our focus is on the decision of the administrative decision maker: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para. 46, [2013] 2 S.C.R. 559. As a result, the discussion which follows will focus on the Commission’s decision rather than that of the Federal Court.
[18] Given the interaction between paragraph 40(5)(a) and subsection 40(6), and the involvement of another decision maker when subsection 40(6) is triggered, the standard of review is not as straight forward as it may first appear.
[19] The Commission found that because the appellant was under a deportation order and had no legal (immigration or citizenship) status in Canada, he was not lawfully present in Canada. It was also clear that, as far as the Commission was concerned, “status of an individual” in subsection 40(6) meant immigration status, and that when the question of a complainant’s status arises, the appropriate minister is the Minister of Citizenship and Immigration (Section 40/41 Report at paras. 18–19).
[20] The Commission also implicitly, if not explicitly, found that it is the Minister’s determination of the complainant’s status that determines whether “the question of status is resolved thereby in favour of the complainant” and, consequently, whether the Commission may “proceed with the complaint” as stated in subsection 40(6).
[21] These questions involve the Commission interpreting its home statute. Thus, reasonableness applies unless the issue falls into one of the correctness categories (Dunsmuir v. New Brunswick, 2008 SCC 9 at paras. 54, 58–61, [2008] 1 S.C.R. 190 (Dunsmuir)). This Court has previously reviewed the Commission’s decisions under subsection 41(1) for reasonableness (see e.g. PSAC v. Canada (Attorney General), 2015 FCA 174 at paras. 27–29, 475 N.R. 232; Hagos v. Canada (Attorney General), 2015 FCA 83 at paras. 8–11), except where correctness was explicitly required (see e.g. Keith v. Canada (Correctional Service), 2012 FCA 117 at paras. 50–53, 40 Admin. L.R. (5th) 1 where the Commission’s decision under paragraph 41(1)(c) engaged a question regarding the division of powers and the jurisdictional lines between two competing tribunals).
[22] In this case, the appellant alleges that the Commission based its interpretation of “lawfully present in Canada” in paragraph 40(5)(a) and “status of an individual” in subsection 40(6) on Forrest FC or Forrest FCA. The jurisprudence is to the effect that the doctrine of stare decisis requires an administrative tribunal to follow a Court’s interpretation of the law: Canada (Commissioner of Competition) v. Superior Propane Inc., 2003 FCA 53 at para. 54, [2003] 3 F.C. 529; Régie des rentes du Québec v. Canada Bread Company Ltd., 2013 SCC 46 at paras. 46 and 68, [2013] 3 S.C.R. 125; Corlac Inc. v. Weatherford Canada Ltd., 2012 FCA 261 at para. 18, 440 N.R. 113.
[23] The appellant goes one step further in his argument when he alleges that the jurisprudence upon which the Commission relied was wrongly decided. In those circumstances, different considerations apply.
[24] Decisions of a panel of this Court are decisions of the Court as a whole. When a panel of appellate judges speak, they do so not for themselves, but for the court. This is reflected in the principle of horizontal stare decisis, which dictates that decisions of a panel of an appellate court bind future panels of the court.
[25] Important values underlie this doctrine. Consistency, certainty, predictability and institutional integrity are enhanced by stare decisis. “Consistency” wrote Lord Scarman, “is necessary to certainty—one of the great objectives of law” (Farrell v. Alexander, [1976] 1 All E.R. 129 (C.A. Civ. Div.), at 147, revd on other grounds [1977] A.C. 59 (H.L.)). To this I would add that there is a link to the rule of law, which requires that the law be normative, that is to say it must be capable of being discerned in order that individuals can conduct themselves in accordance with it. These considerations have an added dimension, particularly so in the context of the Federal Courts’ jurisdiction, where decisions may have significant consequences on a national scale affecting government, corporations and individuals alike.
[26] So important are these values that appellate courts must follow decisions of other panels, even though, if called on to decide the matter afresh, they would decide the matter differently. Trial courts are also bound by appellate decisions, even if the lower court thinks the decision is incorrectly decided (Apotex Inc. v. Pfizer Canada Inc. 2014 FCA 250, at para. 114, 465 N.R. 306 (Apotex)).
[27] Nevertheless, courts must balance certainty and predictability with the need for the law to evolve in response to new economic, social and societal circumstances. As Lord Denning noted, “[t]he doctrine of precedent does not compel [us] to follow the wrong path until [we] fall over the edge of a cliff” (Ostime v. Australian Mutual Provident Society, [1959] 3 All E.R. 245 at 256, [1960] A.C. 459 (H.L.)). Courts also recognize that with the perspective of time, fresh arguments, and hindsight, decisions may not have been correctly decided. In consequence, the Supreme Court of Canada and most Canadian appellate courts have elaborated criteria to be considered when they might, to continue the metaphor, take a different path.
[28] The circumstances under which the Supreme Court of Canada will depart from precedent have received considerable attention as of late (see e.g. Ontario (Attorney General) v. Fraser, 2011 SCC 20 at paras. 56–57 (but see also paras. 129–139 per Rothstein J.), [2011] 2 S.C.R. 3; Canada v. Craig, 2012 SCC 43 at paras. 24–27, [2012] 2 S.C.R. 489 (Craig); Canada (Attorney General) v. Bedford, 2013 SCC 72 at para. 47, [2013] 3 S.C.R 1101). In its most recent articulation (Teva Canada Ltd. v. TD Canada Trust, 2017 SCC 51, [2017] 2 S.C.R. 317 (Teva)) the Court stated that “the Court must be satisfied based on compelling reasons that the precedent was wrongly decided and should be overruled” (at para. 65 citing Craig at para. 25).
[29] The language of Teva is significant. It requires a finding that the precedent was “wrongly decided”. As gleaned from Supreme Court decisions, a case may be considered to be “wrongly decided” where the prior decision does not reflect Charter values, where a decision is attenuated by or inconsistent with another decision of the Court, where the social, political and economic assumptions that underlie the decision are no longer extant or where the law is uncertain. In Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, decided two years earlier, the Supreme Court said that settled rulings of higher courts may be reconsidered by trial courts, where a new issue is raised, “where there is a change in the circumstances” or there is evidence that “fundamentally shifts the parameters of the debate” (at para. 44). Although these criteria were identified in the context of a discussion of vertical stare decisis, they are equally pertinent to a discussion of horizontal stare decisis.
[30] In this Court, a three judge panel may depart from a decision of another panel in three circumstances.
[31] The first arises when the panel is satisfied that the decision was “manifestly wrong, in the sense that the Court overlooked a relevant statutory provision, or a case that ought to have been followed” (Miller v. Canada (Attorney General), 2002 FCA 370 at para. 10, 220 D.L.R. (4th) 149 (Miller)). The second arises when the decision has been overtaken by subsequent Supreme Court jurisprudence. The third arises where there are compelling reasons to do so and correctness prevails over certainty (J.P. v. Canada (Public Safety and Emergency Preparedness), 2013 FCA 262 at para. 72, [2014] 4 F.C.R. 371 (J.P.)).
[32] The manifestly wrong test has been consistently applied in this Court’s jurisprudence when it sits in its usual three-judge formation (see e.g. Kossow v. Canada, 2013 FCA 283 at para. 33, [2014] 2 C.T.C. 1; Apotex Inc. v. Eli Lilly Canada Inc., 2016 FCA 267 at para. 2, [2017] 3 F.C.R. 145). It is also the test in other appellate courts (see e.g. the cases reviewed at paragraph 126 of David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), 76 O.R. (3d) 161, 255 D.L.R. (4th) 633 (C.A.) (Polowin Real Estate)); see also the discussion at paragraphs 77 to 94 of R v. Neves, 2005 MBCA 112, 201 Man. R. (2d) 44; R. v. Grumbo (1998), 159 D.L.R. (4th) 577 at para. 54, 168 Sask. R. 78; United Brotherhood of Carpenters and Joiners of America, Locals 527, 1370, 1598, 1907 and 2397 v. Labour Relations Board, 2006 BCCA 364 at para. 24, 272 D.L.R. (4th) 253).
[33] The question that arises here, however, is the standard to be applied when a five-judge panel considers a decision of a three-judge panel.
[34] In Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215, [2017] 1 F.C.R. 331 (Hospira), a five-judge panel of this Court reversed a three-judge majority of a five-member panel decision in Canada v. Aqua-Gem Investments Ltd. (C.A.), [1993] 2 F.C. 425, 149 N.R. 273 (F.C.A.) (Aqua-Gem) which established the standard of review on appeal from decisions of prothonotaries. Nadon J.A., writing for the five-member panel, noted that the Miller test was not applicable because Aqua-Gem could not be said to be manifestly wrong, but that the rationalization of the law with respect to the standard of review had “fundamentally shifted the parameters of the debate” (Hospira at paras. 61–64).
[35] Other courts have stated that a five-judge panel may overrule a prior decision of a three-judge panel when the “earlier decision was wrong, or [where] for any other reason, the earlier decision ought to be overruled” (Nathanson, Schachter & Thompson v. Inmet Mining Corp., 2009 BCCA 385 at para. 62, 96 B.C.L.R. (4th) 342). The Ontario Court of Appeal stated that the inquiry should be on the nature of the error, its impact and the consequences of maintaining it (Polowin Real Estate at para. 127).
[36] These statements echo the compelling reasons test articulated by the Supreme Court in Craig and Teva and developed by this Court in J.P. Subject to what follows, I would apply this test in a five-judge panel context as well.
[37] The decision which we are asked to overturn consists essentially of two paragraphs in a decision dismissing an appeal on very narrow grounds. While Forrest FCA has been cited on a few occasions on the issue of whether immigration status is an analogous ground under section 15 of the Charter, in the twelve years since it was decided, it has never been cited on the issue at the heart of this appeal, except in the appellant’s case. As a result, this is not a case in which certainty and predictability in the law are in issue. Similarly, this is not a case in which the parameters of the debate have shifted.
[38] In the end, this panel was formed by the Chief Justice in response to a request from the parties who allege that Forrest FCA is wrongly decided and should be set aside. Given the inapplicability of the factors referred to earlier in these reasons, and in the particular circumstances of this case, I believe that this panel’s mandate is simply to decide if Forrest FCA and, by extension, Forrest FC were wrongly decided and if so, to provide further guidance to the Commission.
VI. Analysis
A. Forrest FC and Forrest FCA
[39] The saga begins with consideration of the Federal Court’s decision in Forrest FC.
[40] The facts of Forrest FC are practically identical to the facts of this case, except that Mr. Forrest was not extradited to Canada. Like the appellant, he was convicted of serious crimes, he was sentenced to a long period of imprisonment, and at the time of the alleged discrimination, he was subject to a deportation order whose execution was stayed by operation of paragraph 50(b) of the IRPA. In the course of his incarceration, he was allegedly the victim of one or more discriminatory practices. Mr. Forrest filed a complaint with the Commission, which the Commission dismissed on the basis that it lacked the jurisdiction to deal with it.
[41] In a first judicial review, which is not reported, the Commission’s decision was set aside on consent and the matter was returned to the Commission for re-determination “in accordance with the Direction of this Court that the question of the Applicant’s status in Canada at the relevant time be referred to the Minister of Citizenship and Immigration as contemplated by [subsection 40(6)] of the Canadian Human Rights Act” (Forrest FC at para. 7).
[42] A review of the Federal Court’s file shows that the Commission initially decided, without reference to an appropriate minister, that Mr. Forrest was not lawfully present in Canada. Mr. Forrest filed an application for judicial review which was allowed on the basis of a joint submission that the matter should be referred to the Minister of Citizenship and Immigration. As a result, the Commission referred the question of Mr. Forrest’s status to the Minister of Citizenship and Immigration under subsection 40(6). The latter responded that Mr. Forrest was neither a Canadian citizen nor a permanent resident of Canada and that he was under an order of deportation. The Minister reported that Citizenship and Immigration Canada (CIC) took the position that Mr. Forrest was not lawfully present in Canada at the material time (Forrest FC at para. 8).
[43] The Commission’s investigator who received the Minister’s reply summarized their position with respect to this advice as follows:
7. Following the Federal Court order [in the previous application for judicial review], the Minister of Citizenship and Immigration was asked to confirm the complainant’s legal status in Canada. By letter dated February 28, 2000, the Minister informed the Commission that the complainant has “no status” in Canada. The letter indicates that the complainant is under an order of deportation from Canada and that the order was issued following an immigration hearing on November 23, 1995.
8. Section 40(6) of the CHRA gives the Minister of Citizenship and Immigration the jurisdiction to determine an individual’s status in Canada and states that the Commission cannot proceed unless the question of status is resolved in favour of the complainant. In light of the Minister’s determination that the complainant has no status in Canada, the Canadian Human Rights Commission does not have the jurisdiction to deal with the complaint.
(Forrest FC at para. 22)
[44] In the end, the Commission wrote to Mr. Forrest to advise him that it would not deal with his complaint because it was “beyond its jurisdiction in that the victim of the alleged discriminatory practice was, at the time of such acts or omissions, not lawfully present in Canada” (Forrest FC at para. 1).
[45] The Federal Court pointed out that CIC’s opinion that Mr. Forrest was not lawfully present in Canada was simply gratuitous advice which was not binding on the Commission. The Court was of the view that it was the Commission’s responsibility to determine if Mr. Forrest was lawfully present in Canada and that the Commission could not rely upon the Minister’s or CIC’s advice on that issue to relieve it of its responsibility (Forrest FC at para. 21).
[46] However, the Federal Court considered the Minister’s response as to Mr. Forrest’s standing under the IRPA as “status advice”. The Federal Court’s treatment of that “status advice” is important enough to be quoted at length:
I conclude that the foregoing advice, particularly that contained in the quoted paragraph 8 [quoted above] is correct. As earlier noted, the Minister of Citizenship and Immigration provided the Minister with “status” advice, that being that since the Applicant is neither a Canadian citizen nor a permanent resident of Canada, he has no “status” in Canada. […] Given the Minister’s “status” advice, by virtue of subsection 40(6) of the Canadian Human Rights Act, the Commission had no authority to further examine the question of whether or not the Applicant was “lawfully present in Canada” since the question of status was not resolved in favour of the Applicant. In effect, the question of lawful presence in Canada became irrelevant and the Minister’s gratuitous advice in that regard was similarly irrelevant.
(Forrest FC at para. 23)
[47] The significance of the Federal Court’s reasoning in this paragraph is its conclusions that subsections 40(5) and 40(6) are two distinct mechanisms for determining if the Commission can proceed with a complaint and that it is necessarily the Minister of Citizenship and Immigration who has the authority and responsibility to resolve the question of status under subsection 40(6), once the question is referred to him. I will elaborate on this reasoning shortly but for the present, suffice it to say that both conclusions are incorrect.
[48] Since, in the Federal Court’s view, the Minister’s determination that Mr. Forrest had no immigration status meant that the question of status was not resolved in his favour, the Commission was barred from proceeding with the complaint by the terms of subsection 40(6). In the result, the Federal Court found that the Commission did not err in concluding that it lacked the jurisdiction to deal with Mr. Forrest’s complaint.
[49] I turn now to Forrest FCA.
[50] The argument advanced in Forrest FCA was that Mr. Forrest was lawfully present in Canada within the meaning of paragraph 40(5)(a) of the CHRA because he was in lawful custody (Forrest FCA at para. 8). This Court’s reasoning is contained in a single paragraph:
[9] In my respectful view, the appellant looks at the issue from the wrong end of the telescope. His custody is lawful because he is unlawfully present in Canada. It is also lawful because he has been convicted of serious crimes (possession of a restricted weapon, possession of cocaine for the purpose of trafficking, forcible confinement, assault, possession of a dangerous weapon, pointing a firearm and attempted murder). From an immigration perspective, the legality of his custody is determined both by the illegality of his presence in Canada and his criminal convictions, not the other way around as suggested by the appellant. The fact that he is in lawful custody does not clothe him with an immigration status.
[51] Although being unlawfully present in Canada would be grounds for lawful custody, Mr. Forrest’s custody was of a different nature. At the time of the alleged discrimination, his custody was lawful not because he was illegally in Canada, but because he was serving a prison sentence for committing various criminal offences (Forrest FCA at paras. 6–7; Forrest FC at para. 14).
[52] The reasoning of the Court in Forrest FCA must be understood in this factual context, and the context of the appellant’s argument. Since Mr. Forrest based his appeal on the basis that he was lawfully present in Canada, thereby invoking paragraph 40(5)(a), the fact of his lack of immigration status is material only to the extent that one accepts that “lawfully present in Canada” requires one to have some status under the IRPA. Implicit in paragraph 9 of Forrest FCA is that the absence of immigration status meant that Mr. Forrest was not lawfully present in Canada. In finding as it did, the Court was necessarily rejecting the Federal Court’s conclusion that once the question of status was referred to the Minister under subsection 40(6), the question of “lawfully present in Canada” was no longer relevant.
[53] Indeed, Mr. Forrest was determined by this Court not to be lawfully present in Canada solely because he lacked immigration status. The fact that he was serving an imprisonment sentence for being convicted of criminal offences at the time of the alleged discrimination made no difference.
[54] As noted, the salient features of the present case match those of Forrest FCA. As in that case, the complainant in this case lacks immigration status and is serving a term of imprisonment for a criminal conviction at the time of the alleged discrimination. The sole distinction here is that the appellant’s original entry into Canada was authorized by the Extradition Act and the charges which he faced were circumscribed by the terms of surrender made under the Extradition Act.
[55] With this background in mind, I turn to the Commission’s decision.
B. Analysis of the Commission’s decision
[56] As in Mr. Forrest’s case, the Commission appointed an investigator to examine whether the Commission had jurisdiction to deal with the appellant’s complaint. The investigator prepared a Section 40/41 Report (Appeal Book, at 138-43)(the Report) in which the investigator noted at paragraph 12 that when the Commission was informed that the appellant was not a Canadian citizen and that he had been convicted of murder, “the question of his status in Canada was raised.” It further notes that the parties were not consulted with respect to this referral: see Report at para. 9.
[57] The Minister responded by the hand of his Deputy Minister who advised that the appellant was found to be inadmissible to Canada and was issued a deportation order whose enforcement was stayed until the completion of his sentence. In addition, the Deputy Minister reported that the appellant was not, at the material time, a Canadian citizen, a permanent resident, a visitor whose who had not ceased to be a visitor or a person holding a valid and subsisting Minister’s permit. The Deputy Minister closed by writing that “In other words, during the period in question, [the appellant] did not have any status as a temporary resident, permanent resident or citizen in Canada and as such, was not lawfully present in Canada”: Appeal Book at p. 145.
[58] At paragraph 16, the Report concluded that in light of the information received from the Minister’s office, the question of the complainant’s status was not resolved in his favour “which means he was not lawfully present in Canada within the meaning of section 40(5) of the Act.” This conclusion is inconsistent with Forrest FC and with subsection 40(6) of the Act.
[59] The Report then referred to Forrest FC, noting that it was authority for the proposition that where the question of a complainant’s status is not resolved in the latter’s favour, the Commission does not have jurisdiction over the allegations in the complaint.
[60] In response to submissions made by the appellant’s counsel as to the appellant’s status, the Report reasoned that the determination as to whether a person is lawfully present in Canada within the meaning of subsection 40(5) does not turn on whether the person entered the country legally or was convicted of an offence: “Rather, ‘the status of an individual’ referred to in [sub]section 40(6) refers to that individual’s immigration status […] A person against whom a deportation order has been issued no longer has status in Canada and is not ‘lawfully present in Canada’ within the meaning of section 40(5)”: Report at para. 18.
[61] The Report went on to say that given this interpretation of “the status of an individual”, the appropriate minister pursuant to subsection 40(6) is the Minister of Citizenship and Immigration, not the Minister of Justice or the Attorney General as counsel for the appellant had argued: Report at para. 19.
[62] The Report then referred to this Court’s decision in Forrest FCA, quoting paragraphs 8 and 9 of the decision, which are reproduced above, without commenting on their significance for the appellant’s case: Report at para. 20.
[63] As a result, the Commission found that it did not have jurisdiction over the appellant’s complaint because he was not lawfully in Canada within the meaning of paragraph 40(5)(a) of the Act: Report at para. 23.
[64] The Report then stated its conclusion which was adopted verbatim by the Commission as its decision with respect to the appellant’s complaint:
Citizenship and Immigration Canada has advised the Commission that at the time of the alleged discrimination raised in this complaint, the complainant was under a deportation order and has no legal status in Canada. This means that the complainant was not lawfully present in Canada within the meaning of subsection 40(5) of the Act at the time of the alleged acts of discrimination raised in this complaint. Thus, the question of the complainant’s status was not resolved in his favour. Given the wording of section 40(6) of the Act, the fact that the question of status was not resolved in favour of the complainant means that the Commission does not have jurisdiction over the allegations in the complaint.
Appeal Book at 29
[65] As a result, it is reasonably clear that the Commission’s decision rests on the proposition that because the appellant had no immigration status, he was not lawfully present in Canada. This proposition, which comes from Forrest FCA, is the question whose correctness is challenged in these proceedings. This leads us to an examination of the statutory scheme.
C. The interpretation of subsections 40(5) and 40(6) of the CHRA
[66] I begin where any statutory interpretation exercise must: the modern approach, that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para. 21, 154 D.L.R. (4th) 193 (Rizzo) citing E. A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at 87). Another way of expressing the same principle is that “[t]he interpretation of a statutory provision must be made according to a textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as a whole”: see Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54 at para. 10, [2005] 2 S.C.R. 601.
[67] The crux of this appeal is the reasonableness of the Commission’s interpretation of “lawfully present in Canada” in paragraph 40(5)(a) and of “status of an individual” in subsection 40(6). Recall that the Commission determined that the absence of immigration status meant that the appellant was not lawfully present in Canada, and that “status of an individual” in subsection 40(6) only refers to immigration status such that it was required to refer the question of status to the Minister of Citizenship and Immigration alone.
[68] When the appellant was extradited to Canada, he entered Canada under the authority of the Extradition Act. In particular, he entered Canada as a result of the Minister of Justice making a request to Belgium for his extradition under both section 78 of the Extradition Act and the Treaty Between the United Kingdom and Belgium for the Mutual Surrender of Fugitive Criminals (29 October 1901) (Extradition Treaty).
[69] The Extradition Act remained the legal authority for the appellant’s continued presence in Canada while in detention prior to and during trial. The specific legal authority for his detention during the trial is the surrender order, which, subject to section 80 of the Extradition Act and article 6 of the Extradition Treaty, gives Canada jurisdiction to detain and prosecute the extradited person.
[70] In the case of an individual, extradited or not, who lacks immigration status but who receives a sentence of imprisonment for a criminal conviction, a Warrant of Committal issues under the Criminal Code which commands the keeper of the institution to which he is committed to “to receive the accused into custody and to imprison him or her there for the term(s) of his or her imprisonment” (Criminal Code, R.S.C. 1985 c. C-46, Form 21), as well as sections 11-14 of the Corrections and Conditional Release Act, provide authority for their detention of the convicted person in a Canadian prison.
[71] The Extradition Act is also a continuing source of authority for the appellant’s presence in Canada post-conviction in that it continues to circumscribe Canada’s jurisdiction over him by ensuring that he is not detained, prosecuted, or imprisoned with respect to any offences other than those for which he was extradited. Here, there is no question that the appellant’s imprisonment falls within the scope of his surrender order. Consequently, while the Extradition Act provides a basis, parallel to the Criminal Code, for the legality of his presence in Canada, it is not sufficient to distinguish this case from Forrest FCA.
[72] It is opportune to begin by considering subsections 40(5) and (6) within the scheme of the Act, that is, by a consideration of the contextual factors.
[73] In interpreting these provisions, it is also important to recall that section 12 of the Interpretation Act, R.S.C. 1985, c. I-21 states:
Enactments deemed remedial
Principe et interprétation
12 Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.
12 Tout texte est censé apporter une solution de droit et s’interprète de la manière la plus équitable et la plus large qui soit compatible avec la réalisation de son objet.
[74] This principle of interpretation takes on added significance in the human rights context, where the Supreme Court has long held that rights-conferring provisions are to be interpreted broadly and liberally, while exceptions are to be narrowly construed (see e.g. Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321 at 339, 93 D.L.R. (4th) 346; New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc., 2008 SCC 45 at paras. 65–67 (per McLachlin C.J.C., concurring in part), [2008] 2 S.C.R. 604; see also Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed., (Markham: LexisNexis Canada Inc., 2014) at §19.1–§19.10).
[75] The CHRA is concerned with discriminatory practices. The sections which define discriminatory practices proscribe those practices with respect to “any individual” or “an individual”: see paragraphs 5(a) and (b), paragraphs 6(a) and (b), paragraph 7(a), paragraphs 9(1)(a) and (c), section 10, and subsection 14(1) of the CHRA. In some cases, a more restrictive descriptor is used because the focus is persons with a particular status: see, for example, the reference to “employee” in paragraph 7(b) dealing with discrimination in employment, the reference to “members of [an] organization” in paragraph 9(1)(b) dealing with discrimination in employee organizations, the reference to “male and female employees” in subsection 11(1) dealing with equal wages.
[76] In my view, these inclusive references demonstrate an intention to extend the benefit of the legislation to as broad a group of persons as possible.
[77] The process of